In Luton Borough Council v Universal Group we have the first (and almost certainly last) decision of the Lands Tribunal under the Housing Act 2004 on appeal from a Residential Property Tribunal (or RPT).

15-17 Chapel Street, Luton is (or was) consisted of a night club on the ground floor and 11 storeys of 13 residential flats rising above it. The electricity and water supply to the building had been cut off by the landlord (according to their evidence because there had been a major water leak in the building). The local fire service had also expressed some concern — according to the landlord because the fire alarm for the building was integrated with that of the nightclub — and had served an emergency notice on the club.

The lack of light and water understandably caused concern to Mr Skepelhorn, the tenant of Flat 11, who complained to the council. The council’s officer arrived and found one of the landlord’s employees boarding up the property because it “was unsafe” although it appeared to the officer that the reasons for the lack of safety were the lack of water, electricity and the presence of some of the landlord’s men on the property who appeared to be throwing things out.

I interject to say that the phrase “classic unlawful eviction” came to mind as when I first read the RPT decision. A landlord allows or encourages a property to become dangerous to its tenants and then is “forced” to evict them for their own safety. Such landlords often seem baffled that courts do not assist them with alacrity in such a public spirited endeavour.

The council warned the landlord that there were tenants in the property and that the landlord was required to use lawful means to evict its tenants.

The following day the council received a telephone call from Mr Skepelhorn that a carpenter was trying to board up the property. Exchanges with the landlord made it clear that the landlord had no intention of sorting out the problems with light and electricity. The council’s officer attended the property.

He decided that there were category 1 hazards on the property and (after a call to his line manager) that emergency remedial action should be taken. Notices were hand delivered to flats 7, 10 and 11 (where there appeared to be individuals still in occupation).

The remedial action consisted of sending a council plumber to turn on the water though in “Carry On” style the fire hoses had been left on so a certain amount of scrambling around was needed to turn them off. Someone had removed the main fuse carriers so EDF were called to reinstate the power supply. Mr Skepelhorn was able to return to his flat.

The Council then served a notice of emergency remedial action (pursuant to s.41 of the Housing Act 2004) on the landlord. Identifying three category 1 hazards: falling on stairs due to lack of light, falling on levels due to lack of light and absence of domestic water supply. Total cost of remedial works: £215 plus admin charge of £50.

Somewhat surprisingly, the landlords appealed the notice to the RPT. The landlord agreed that there were category 1 hazards on the premises but argued that they were so dangerous that the proper action that the Council should have taken was an emergency prohibition order.

The RPT agreed. In their view given the imminent risks emergency action of some kind was warranted. They reasoned that, although the emergency remedial action would deal with the hazards identified in the notice, there were almost certainly other hazards. Their reason for favouring an emergency prohibition order (“EPO”) was that:

an emergency prohibition order would have the benefit of immediately removing all occupants and visitors from the identified risks, would not have created other potential hazards and would have prevented any other persons from taking up occupancy, even on a temporary basis.

Now an EPO does no such thing. It does remove the security of tenure of Housing Act 1988 and Rent Act 1977 tenants, but it does not automatically end existing tenancies (you have to apply to the tribunal for that) nor does it magically prevent squatters. It does push a landlord into either doing something about the hazards or evicting its tenants fast, but the landlords in this case appear to have been doing the latter rather eagerly without encouragement.

On appeal to the Lands Tribunal, the landlord (who may have received some better legal advice) had agreed with the Council not to oppose in exchange for the charge under the notice being waived. The appeal was therefore unopposed.

The Lands Tribunal upheld the appeal. Its reasons were short:

There were (as was common ground) category 1 hazards on the premises. Those could be dealt with, and were dealt with, at a cost of £215. No reasonable person would have considered it justifiable to deprive Mr Skepelhorn of his home in order to avoid executing work costing £215. Luton’s decision to carry out its obligation to take appropriate enforcement action by taking emergency remedial action was the correct decision. If it had decided (as Universal suggested) that an emergency prohibition order would have been the proper course, that would have been an impeachable decision because the enforcement action would not have been the appropriate enforcement action.

Quite.

The decision is interesting because we the Council argued, deploying Cosic, Lambeth and Kay that it would be disproportionate for them to interfere with Mr Skepelhorn’s Article 8 rights. The Lands Tribunal also dismisses a number of other conclusions of the RPT for example a refusal to admit hearsay evidence and a finding that emergency remedial action could not be taken unless and until a full HHSRS inspection had been carried out.

I am relieved to see the Lands Tribunal putting right what seemed an astonishingly bad RPT decision that appeared to support the landlord’s efforts to carry out an unlawful eviction. Given that Mr Skepelhorn was (according to the landlord) the last tenant in occupation, one can’t help thinking that Housing Act damages could be quite large.

As I said at the outset, we will be seeing the last of the Lands Tribunal next month when it is abolished and replaced by the Lands Chamber of the Upper Tribunal. One positive side-effect of the change will be that the Upper Tribunal is a superior court of record and so its decisions ought to constitute binding authority on RPT’s and LVT’s. That can only be a good thing.